State ex rel. Jameson v. Denny

• Decision Date: 24 April 1889
• Docket Number: 14,837
• Citation: 21 N.E. 252,118 Ind. 382
• Parties: The State, ex rel. Jameson et al., v. Denny, Mayor
• Court: Indiana Supreme Court

21 N.E. 252

118 Ind. 382

The State, ex rel. Jameson et al., v. Denny, Mayor

No. 14,837

Supreme Court of Indiana

April 24, 1889

From the Marion Superior Court.

Judgment affirmed.

J. S Duncan and C. W. Smith, for appellants.

L. T Michener, Attorney General, W. L. Taylor, A. C. Harris, W. H Calkins, F. Winter, R. O. Hawkins, C. F. Griffin and J. H. Gillett, for appellee.

Coffey, J. Elliott, J. Mitchell, J.

OPINION

Coffey, J.

On the 9th day of March, 1889, there was filed in the office of the secretary of state what purports to be an act of the General Assembly of the State of Indiana, entitled "An act to establish an efficient board of public works and affairs in all cities of fifty thousand inhabitants or more; providing for the manner of the selection of the members of the board hereby created, and defining their duties, and providing for the selection of their successors; providing for the taking control of and having exclusive power over the construction, supervision, cleaning, repairing, grading and improving all streets, alleys, and highways of every kind and description, and the building of sewers, culverts, bridges, sidewalks and curbing of all streets and alleys; and providing for the abolishment of existing boards of public improvements in such cities; providing for the making of contracts for the lighting of all streets, alleys, public buildings, and public places within such city, and providing for the making of all contracts for the supply of water for all purposes of whatever kind for such city; and abolishing all boards on lights, water-works, and supplies; and providing for the appointment of a legal adviser, a city civil engineer, and superintendent of streets, and repealing so much of section eight (8) of an act entitled 'An act to repeal all general laws now in force for the incorporation of cities, and to provide for the incorporation of cities, prescribing their powers and rights and the manner in which they shall exercise the same, and to regulate such other matters as properly pertain thereto,' approved March 14th, 1867, and amended March 6th, 1877, the same being section three thousand and forty-three (3043) of the Revised Statutes of 1881, as is in conflict with this act; and repealing all laws in conflict herewith, and declaring an emergency." Acts of 1889, p. 247.

The act provides for the establishment, in all cities in this State containing a population of fifty thousand inhabitants or more, of a board of public works and affairs, to consist of three members, selected from the two leading political parties, one member of said board to hold his office for the period of two years from the date of his selection, and the other two members are to hold their office for the period of four years.

The members of such board must have been freeholders of the city at least one year prior to their election, and must have been bona fide residents of the city at least five years. Each member of such board is required to execute a bond in the sum of $ 20,000, to the approval of the mayor of the city, for the faithful performance of the duties of his office.

The act abolishes all existing boards of public improvements and the office of street commissioner, and confers on the board of public works and affairs thereby created the power to perform all the duties heretofore conferred upon such boards of public improvements and street commissioner. It also gives such board of public works and affairs full power to construct all streets, alleys, avenues, bridges, sewers, drains, ditches, culverts, sidewalks and curbing, and to take charge of the cleaning, repairing, grading and improving of the same, and to make all contracts for the furnishing of lights for the streets, public buildings and public places in the city, and for furnishing water for the city for every purpose. It has the exclusive power to employ such superintendents, laborers or other persons as it may deem necessary for the execution of its business, and fix their salaries and compensation.

By the terms of said act the board of public works and affairs is to have the exclusive power and control over the construction, supervision, cleaning, repairing, grading and improving all streets, alleys, avenues, lanes, bridges, drains, culverts, sidewalks and curbing, and the lighting of such public places as may be deemed necessary in such city, and to fix and establish the grades of all streets and alleys, avenues and thoroughfares. It may order and construct the improvement of any street, alley or thoroughfare in the city where a majority of the property-owners affected thereby do not remonstrate.

It has the exclusive power to make all improvements and expenditures. Such board is entitled to possession of all property belonging to the city, used for the purposes named in the act, and it is made the duty of the common council to provide for the payment, out of the city treasury, of all the expenses incurred by the board of public works and affairs.

The act makes it a criminal offence for any person to interfere, in any manner, with said board or its employees in the discharge of their respective duties. It also makes it the duty of the General Assembly of the State to elect the board of public works and affairs, by a joint vote of a majority thereof, and it is made the duty of the speaker of the house and the secretary of the senate to certify such election. In case of a vacancy in such board, it is made the duty of the mayor of such city to fill the same by appointment.

Pursuant to the terms of this act, the appellants were elected by the General Assembly of the State of Indiana as members of the board of public works and affairs for the city of Indianapolis, prepared the bonds therein required and tendered the same to the appellee, as the mayor of said city, for his approval. The appellee, as such mayor, declined to approve said bonds, and this action was brought, in the superior court of Marion county, to compel him, by mandate, to discharge that duty. The rulings of said court being adverse to the appellants, they appeal to this court and assign error.

It is conceded that if the act in question is a valid and binding law, and that the appellants were legally elected, the judgment of the court below must be reversed.

Admitting for the time being that the act in question is otherwise valid, it is insisted that, under our Constitution, the General Assembly had no power to elect or appoint the appellants, and that so much of the act as attempts to confer on it such power is in conflict with the Constitution, and is, therefore, void.

It is claimed that the appointment to an office is an executive function, and that by the terms of our Constitution the General Assembly is prohibited from filling an office created by it, unless such office is connected with the duties imposed upon it as a legislative body. This contention arises out of the provisions of section 1, article 3 of the Constitution, which is as follows: "The powers of the government are divided into three separate departments; the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided."

In the case of Wright v. Defrees, 8 Ind. 298, it was said by this court that "The powers of the three departments are not merely equal,--they are exclusive, in respect to the duties assigned to each. They are absolutely independent of each other."

In the case of Lafayette, etc., R. R. Co. v. Geiger, 34 Ind. 185, this court, in speaking of the above constitutional provision, says: "The same division of powers exists in the Federal Constitution, and in most, if not all, of the State Constitutions, and is essential to the maintenance of a republican form of government. These departments of government are equal, coordinate, and independent. The duties imposed on each are separable and distinct, and it is expressly provided, that 'no person, charged with official duties under one of these departments, shall exercise any of the functions of another.' The persons charged with the execution of these powers are alike elected by, and are responsible to, the people, in whom resides the sovereignty of the State. This division of power prevents the concentration of power in the hands of one person or one class of persons." The same language is used substantially in Smith v. Myers, 109 Ind. 1, 9 N.E. 692; State v. Governor, 1 Dutch. 331; Ex Parte Dennett, 32 Me. 508; Low v. Towns, 8 Ga. 360; Mauran v. Smith, 8 R.I. 192; Hawkins v. Governor, 1 Ark. 570; Houston, etc., R. W. Co., v. Randolph, 24 Tex. 317; People v. Bissell, 19 Ill. 229; Dickey v. Reed, 78 Ill. 261; Rice v. Austin, 19 Minn. 103; Western R. R. Co. v. De Graff, 27 Minn. 1, 6 N.W. 341; Secombe v. Kittelson, 29 Minn. 555, 12 N.W. 519; Sill v. Village of Corning, 15 N.Y. 297; People v. Albertson, 55 N.Y. 50; Cooley Const. Lim., star pp. 87, 88, 93, 114, 175; Sedgw. Const. & Statute Constr. (2d ed.) 132, 138, 184.

Legislative power is the power to make, alter and repeal laws, and is vested in the General Assembly. Lafayette, etc., R. R. Co. v. Geiger, supra.

Cooley, in his Constitutional Limitations, page 90, says: "The legislative power we understand to be the authority, under the Constitution, to make laws, and to alter and repeal them. Laws, in the sense in which the word is here employed, are rules of civil conduct, or statutes, which the legislative will has prescribed." See, also, Greenough v. Greenough, 11 Pa. 489; Wayman v. Southard, 23 U.S. 1, 10 Wheat. 1, 6 L.Ed. 253.

In the convention which framed our Constitution, Mr. Biddle, a...